Negotiating the Business Terms of the Lease Deal
Although it would be nice, it’s highly unlikely that a commercial landlord will hand you a proposed lease with correctly-worded and perfect terms and conditions. As we explain in our new book, Negotiating Commercial Leases & Renewals FOR DUMMIES, it is more likely that you will have to negotiate many of the primary business terms critical to your business success. Here are a few things that franchise tenants should not ignore:
Choosing between an Offer to Lease or Letter of Intent: Franchise tenants, landlords, and agents often use these phrases interchangeably, but these initial lease documents are different. A Letter of Intent (or LOI) is often shorter and is non-binding to either party. An Offer to Lease is, typically, more in-depth and is binding – subject to conditions by the landlord and tenant. Given a choice, The Lease Coach recommends using an Offer to Lease rather than an LOI. An agent may try to sway you otherwise with the argument, “It’s non-binding … what have you got to lose?”. The truth is that you can have a lot to lose if you send in a hurriedly composed and/or poorly thought out LOI or sign an LOI that is unfair to you.
Determining the Parties to the Lease Agreement: The landlord’s corporate identity is usually well-established; however, yours may not be. The Lease Coach recommends that you not list your personal name on the agreement (as you will become personally responsible for any future losses). Instead, form a corporation or LLC for your business. Establish your corporate identity ahead of the negotiation process and have it ready to use on all correspondence because this name that you use on the Offer to Lease will carry over into the formal lease agreement, unless noted that it will change.
Noting the lease term (or length): The majority of commercial lease deals are five-year lease terms; however, exceptions have become more commonplace. The Lease Coach frequently negotiates three-, seven-, or 10-year lease terms. A lease term can be stated in either months or years. It’s important to factor in the start and expiration dates of the lease term relative to what’s best for your business. Franchised commercial tenants should make sure that their lease term matches their franchise term to avoid issues with the lease term. This happens when the start date of the franchise agreement is prior to the start date of the lease agreement – which may be several months later when the franchised business actually opens.
Listing the Base (or Minimum) Rent: Base rent is the portion of the rent payable to the landlord, excluding operating costs, and is the most negotiable portion of the rent you pay. Calculating your total base rent is easy – take the number of square feet and multiply it by the annual rent per square foot to equal your annual base rent. By dividing the annual base rent by 12 (months), this will equal your monthly base rent for your tenancy.
Establishing the Location to be Leased: You may think this would be obvious, but many franchise tenants can become confused about the exact location after dealing on several sites within a cluster of plazas situated on a single piece of land. If the property location or the premises can’t be easily identified in your paperwork, the entire lease agreement can be considered null and void in extreme circumstances. To that end, name the property (with both a legal and a municipal address, property name, property description – i.e. shopping mall, plaza, etc.), and unit number (if applicable).
Confirming the square footage of the premises: Knowing the exact size of the leased premises is important for several reasons:
- The base (or minimum) rent is calculated by square foot.
- The operating costs are also calculated by square foot.
- The tenant allowance may be calculated by square foot.
Most franchisees know approximately how much square footage they need to successfully operate their business (or will have this space requirement provided to them by their franchisor). If a franchise tenant needs 1,000 sq. ft. and it turns out they’re short 100 sq. ft., that represents 10 percent of their leasable area (100 sq. ft. is relative, but 10 percent is huge).
With regards to the square foot measurement, watch for the word, “approximately” in the LOI or Offer to Lease. A few square feet here or there may not sound like much but they make such a difference in the rent you pay and the size of fixtures you bring in … if you were quoted that the space had 21 feet of frontage but, in actuality, there is only 18.5 feet of frontage, you can experience some potential design issues.
There are, of course, many other business terms in a commercial lease. Don’t overlook any of the following:
- The amount of tenant allowance and/or free rent
- The amount of operating costs (Common Area Maintenance / CAM charges)
- A list of the landlord’s and the tenant’s work to be done
- The amount of the lease deposit
- Conditions (business permits, including zoning; construction estimates; financing; inspection of the property / premises; partner / franchisor approval; and satisfaction with the formal lease agreement)
- Assignment Rights
- Days and hours of operation
- Expansion right
- Personal Guarantees
- Termination rights
For a complimentary copy of our CD, Leasing Do’s & Don’ts for Franchise Tenants, please e-mail JeffGrandfield@TheLeaseCoach.com.
Dale Willerton and Jeff Grandfield - The Lease Coach are Commercial Lease Consultants who ; while work exclusively for tenants. Dale and Jeff are professional speakers and co-authors of Negotiating Commercial Leases & Renewals FOR DUMMIES (Wiley, 2013). Got a leasing question? Need help with your new lease or renewal? Call 1-800-738-9202, e-mail DaleWillerton@TheLeaseCoach.com or visit www.TheLeaseCoach.com.
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